TCIA Comments on a More Effective and Collaborative OSHA

On March 6, 2018, Peter Gerstenberger, senior advisor for safety, standards & compliance, represented the tree care industry to OSHA and the House Subcommittee on Workforce Protections at a testimony that resulted in a ruling about electronic injury reporting. If you have more than ten employees, read more about the new rule at https://www.osha.gov/injuryreporting to see how it affects your business. Commenting is open until April 30, 2018.

On behalf of the 2,400 members of the Tree Care Industry Association, we thank Chairman Byrne and the members of this committee for the opportunity to comment on a topic that couldn’t possibly be any more important to us – worker safety.

To give the committee’s current members the briefest history of TCIA’s collaboration with OSHA: We had an OSHA Alliance for six years. We petitioned federal OSHA for a separate standard for arborists 12 years ago, and in the intervening period we have worked collaboratively with State Plan OSHA’s in California, Maryland and Virginia to enact or revise robust yet sensible regulations for our profession.

OSHA’s mission is to assure safe and healthful working conditions for working men and women. TCIA’s mission is improve workplace safety and reduce accidents in our profession. The question is how OSHA and TCIA can be most effective in what is essentially a shared mission?

From our perspective, federal OSHA could be most effective if it would adopt a rule specific to our industry. Such an undertaking is slated for long-term action on DOL’s most recent semi-annual regulatory agenda.

TCIA has about 2,400 member companies in the U.S. but there are likely between 12,000 and 15,000 tree care employers who would be affected by an OSHA rule. In terms of safety and accidents, TCIA has to look at the tree care profession in its totality. The employers most in need of OSHA’s and TCIA’s guidance are, ironically, the ones least likely to have any interaction with our respective organizations. The real challenge is not coming up with the training or guidance needed. For example, our industry has had a consensus safety standard in place for over 40 years. In calendar years 2015 and 2016, TCIA’s Arborist Safety Training Institute funded 34 training workshops and trained more than 1,000 arborists. We have collaborated with both federal and State Plan OSHAs as well as various FACE programs on a variety of fact sheets, quick cards, etc. detailing the hazards of tree work. The most recent example of our collaboration is federal OSHA’s Solutions for Tree Care Hazards Info Sheet, produced this year and depicted above.

The challenge is getting small employers to pick up this sort of information, take it to heart and use it. In terms of the need, we have barely scratched the surface.

In our view, an OSHA arborist standard would be a significant instrument for change.

A regulation communicated through outreach activities, and enforced through citation and penalty will give some employers the impetus they need to become more vigilant about safety procedures and training.

Federal OSHA together with its state partners it has approximately 2,200 inspectors responsible for the health and safety of 130 million workers, employed at more than 8 million worksites around the nation - which translates to about one compliance officer for every 59,000 workers.

TCIA will not comment on the adequacy of OSHA’s budget or size of its workforce in the fulfillment of its mission. Stating the obvious, an OSHA inspection at a tree care work site is a relatively low-probability event, especially considering tree crews don’t work at fixed locations. Therefore, OSHA’s mission would be best served if OSHA could leverage the self-policing conducted by conscientious employers.

We do not feel that non-regulatory guidance alone has sufficient impact. As we mentioned previously, we have collaborated with both federal and State OSHAs as well as FACE programs off and on over the past 15 years on various projects and candidly, we haven’t seen a significant improvement in outcomes as a result. Tree work is still unofficially the third or fourth most dangerous occupation in the U.S., with approximately 80 percent of the fatal accidents occurring among what we estimate to be about 20 percent of the employers.

What better way for OSHA to help the employers and employees it may never meet than to publish a sensible rule that has the force of law, along with the non-regulatory guidance that typically accompanies it?

A regulation will inform and empower every OSHA CSHO to identify hazards and control measures unique to tree work, and to intervene to prevent accidents.

An arborist-specific regulation will increase OSHA’s effectiveness by guiding field compliance personnel to proactively look for profound hazards unique to this work in their inspections, thus preventing accidents and saving lives.

TCIA reviewed all OSHA inspections of tree service companies2 over the past two years. We compared cases where inspections were conducted: 1) in the absence of any accident or complaint, 2) after a formal complaint had been lodged, and 3) in the aftermath of an accident.

Group 1 consisted of 20 inspections and 35 citations. OSHA went for low-hanging fruit. Fifty percent of the citations were PPE violations, and another 30 percent were for failure to wear fall protection in an aerial lift. There was one general duty citation.

In the complaint cases (Group 2; 8 inspections, 21 cites), citations clearly focused on the substance of the complaint. They were: PPE – 25 percent, lockout/tag-out – 25 percent, and an assortment of unsafe conditions like failure to inspect crane, unsafe operation of crane, aerial lift fall protection, and electrical hazard violations. Again there was one general duty citation.

When there was a smoking gun; i.e., an accident resulting in either a referral or an employer-reported fatality or injury (Group 3; 37 inspections, 67 cites), there was a dramatic shift. Among post-accident citations, two-thirds addressed the direct cause of the incident with some degree of specificity, and 30 percent were general duty citations, which means they were likely researched in the tree care industry’s consensus safety standards to address the accident causation with even greater specificity. The very generic OSHA standards used in 80 percent of the no-accident inspections were used in less than one-third of the post-accident cases.

We compared this result with the State Plans in Maryland and Virginia that have robust rules for arborist safety. We use the same search criteria and time period. In those two States, arborist-specific unsafe work practices were cited in 37 percent of the no-accident inspections and 50 percent of the post-accident cases.

To summarize: in random and planned inspections where federal OSHA rules were cited, field compliance personnel tend to look at workplace conditions in our industry very superficially. When there has been an accident, field compliance is in many cases forced to more extensive research to characterize what the employer should have known or done differently to avoid the accident.

By contrast, with an industry-specific rule in place field compliance are more empowered to readily spot unsafe conditions unique to arborists’ work and make corrections. Regardless of whose data we look at, the big five causes of serious and fatal accidents remain the same. The data suggests that the focus for new regulatory language should be on falls from trees, struck by trees, and struck by tree limbs. Existing standards already address electrical contacts and falls from aerial lifts to some extent, but more specificity could be provided in a new standard. Chipper accidents comprise another relatively narrow topic worth addressing. Finally, a new rule must address arborists’ use of cranes. This is a subject unto itself that merits lengthy discussion; but we will summarize by saying that cranes used by arborists are saving lives virtually on a daily basis, and that the standard OSHA now uses to regulate crane use in general industry is now over 40 years old.

Thank you again for this opportunity to comment on a very important subject for our profession.